Unlawful killing: how trusts can prepare for an inquiry

With new corporate manslaughter laws soon coming into force, trusts need to ensure they know how to prepare for an inquest. Laura Hale outlines the essentials

A recent death at Swindon and Marlborough trust sparked media interest when it was ruled an unlawful killing by the coroner. Coming on the eve of the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007, the case acts as a timely reminder of the potential impact of inquests on the NHS.

The facts

Mayra Cabrera was admitted in labour to the Great Western Hospital in Swindon. During her admission, Bupivacaine, an anaesthetic, was erroneously administered into her arm. As a result, she suffered a heart attack and died shortly after giving birth.

While the media have reported that the trust was found guilty of Mrs Cabrera's unlawful killing, this cannot be so since Rule 42 of the Coroner's Rules prevents a coroner from reaching a verdict which determines a question of civil or criminal liability on the part of any named person or organisation. However, as the rule is limited to the verdict itself, in gathering evidence the coroner may explore facts that have a bearing on criminal and civil liability.

In the Cabrera case, the coroner heard how a fatal administration error was made whereby Bupivacaine was mistaken for saline solution. Evidence given at the inquest revealed that the mistake occurred as a result of the poor labelling of bags holding the drug solution. The coroner criticised the method of labelling and storing drugs and indicated that he would write to the health secretary with his concerns.

A verdict of unlawful killing is rare because the coroner or their jury needs to be satisfied beyond all reasonable doubt that the death resulted from an unlawful killing.

The implications

Trusts should be aware that where an unlawful killing verdict is returned and no criminal charges have been brought, the Crown Prosecution Service must review previous decisions not to bring charges.

The organisation may face charges under the Health and Safety at Work Act 1974. Section 3 places a duty on employers to ensure, as far as is reasonably practicable, that those not in their employ are not exposed to risks to their health or safety. Southampton University Hospitals trust was convicted in this context as a result of the failure of two junior doctors to take adequate steps to inform more senior colleagues of particularly abnormal observations in a patient who had undergone surgery.

Charges that may be brought against an individual include murder, gross negligence manslaughter and aiding or abetting suicide, as well as the offences dealing with personal liability at sections 7 and 37 of the act.

The new law

Currently, under the common law, a trust is unlikely to face charges for corporate manslaughter because in order for there to be a successful prosecution, the "controlling" mind of the organisation must be guilty of gross negligence manslaughter.

It is hard to identify any individual who personifies an organisation as large as an NHS trust, where management structures are complex. However, this will change when the Corporate Manslaughter and Corporate Homicide Act 2007 comes into force on 6 April 2008.

The act introduces a new test for corporate manslaughter which states that an organisation will be guilty where a person dies as a result of the way its activities are managed or organised (by senior management) and the death results from a gross breach of a relevant duty of care.

Inquest tips

When preparing for an inquest, always consider the following:

Does the trust need to be represented? Is it likely legal submissions on verdicts will be required? Do the trust and/or its employees face potential criticism?

Do individual witnesses need their own representation? If there is potential conflict, then the issue of separate representation should be addressed at the outset. Where unlawful killing is a potential outcome, it would be wise to advise witnesses to consult their defence organisations.

Do witnesses understand the inquest rules on self-incrimination?

Do witnesses know whether the trust has made any changes to its procedures since the death occurred?

Has the trust's communications/press team been briefed?

Rule 42 prohibits verdicts being framed in a manner that determines criminal or civil liability. However, an unlawful killing verdict can see organisations or individuals facing life-changing ramifications (whether civil, criminal or disciplinary), which makes it essential that their interests are represented and protected throughout the coroner's court proceedings.

Financial penalties are being lifted from high-profile standards including cancer and elective waiting times, so far without attracting much attention. How is this happening? And will it work, asks Rob Findlay